ANIL ANAND/KHALID GUL
New Delhi/Anantnag, May 1: The Supreme Court Tuesday asked the Army authorities to decide within eight weeks whether its personnel accused of fake encounter killings in Jammu and Kashmir should be tried by court-martial proceedings or by regular criminal courts.
A bench of justices B S Chauhan and Swatanter Kumar said that if the Army authorities were not keen on court-martial proceedings, then the CBI can seek sanction from the Centre for prosecution of the Army officers.
Supreme Court said the sanctions from the Centre are necessary for taking action against the eight Army officials allegedly involved in the Pathribal fake encounter.
The Apex Court has granted the army eight weeks to decide which recourse it wishes to take to proceed against the accused. If the army chooses not to take the court-martial route, the Central Government will then have to decide within three months on whether to grant sanction for the prosecution of the army officers in question, it observed.
Upholding an important part of the Armed Forces Special Powers Act (AFSPA,) the judges said that the prosecution of army officers in states, such as Jammu and Kashmir and Assam where the Act applies, has to be sanctioned by the government.
Army personnel were allegedly involved in the killing of five persons in an alleged staged shootout at Pathribal in Jammu and Kashmir’s Anantnag district 12 years ago.
In the event of the accused officers being tried by the regular criminal courts, the Centre shall consider the CBI’s plea for sanction within three months, the apex court said.
The bench had reserved its verdict on April 23.
Earlier, while concluding their arguments, Additional Solicitor General Harin Raval and senior counsel Ashok Bhan, appearing for CBI, had reiterated that Army personnel involved in the alleged fake encounter have no immunity from prosecution.
CBI had earlier told the special bench that it was a case of “cold-blooded murder and the accused officials deserve to be meted out exemplary punishment.”
CBI had contended that no prior sanction was required for prosecuting the Army personnel and the need to ensure “public confidence in the rule of law and dispensation of justice” warranted their prosecution.
“Our investigations have revealed it was a fake encounter and cold-blooded murders. If public confidence in the rule of law and dispensation of justice is to be sustained, the accused officers deserve to be meted out exemplary punishment,” Bhan had told the bench.
Bhan’s submission was contrary to the stand taken by Additional Solicitor General P P Malhotra, who, appearing for the Army officers, had said prior sanction was mandatory for prosecuting the personnel who otherwise were innocent.
The Defence Ministry and CBI have differed on the issue of immunity enjoyed by the Army under the controversial AFSPA (Armed Forces Special Powers Act) and other regular laws in encounter killing cases.
CBI had maintained the expression used in Section 6 of the Armed Forces Special Powers Act, which gives immunity to Army personnel for encounters killings, was not available to the accused officers in the present case.
Additional Solicitor General P P Malhotra, on behalf of the Centre, had denied the allegations of fake encounter and argued they enjoyed protection in discharge of their official functions.
CBI had earlier moved an application for vacating the stay granted by the apex court on the trial relating to the killings of 7 persons allegedly by the Army following the killing of 36 civilians by gunmen at Chattisinghpora in 2000. The Army had passed on the five civilians killed in the alleged fake shootout as the militants of Lashkar-e-Toiba responsible for the Chattisinghpora massacre.
According to CBI, though the right to immunity under 197 CrPC was available to the officers, in the present case it has not been sought by the accused but by senior Defence Ministry officers, which was contrary to the law.

BACKGROUND
Khalid Gul Adds: Five days after the massacre of 35 Sikhs in Chattisinghpora, on 25 March 2000, troops killed five men at Pathribal village of Islamabad district claiming that the victims were “foreign militants” responsible for Chattisinghpora massacre.
Official reports claimed that troops had, after a gunfight, blown up the hut where the men were hiding, and had retrieved five bodies that had been charred beyond recognition. The bodies were buried separately without any postmortem.
Locals, however, raised finger of suspicion over the official claim pointing out that if there had been a gunfight, some of the troops would have sustained injuries - but none were injured. Over the following days, locals began to protest, claiming that the slain men were ordinary civilians who had been killed in a fake encounter not “foreign militants.”
According to them, up to 17 men had been detained by the police and “disappeared” between March 21 and 24. On March 30, local authorities in Islamabad relented to growing public pressure and agreed to exhume the bodies and conduct an investigation into the deaths.

THE BARAKPORA KILLINGS
With no action being taken with regard to the promised investigation into the Pathribal killings, the local population grew increasingly restless. On 3 April 2000, an estimated 4000 to 5000 protesters started marching towards the Islamabad town, where they intended to present a memorandum to the Deputy Commissioner demanding exhumation of bodies. When they reached the Brakpora village, 3 kilometers from Islamabad, the paramilitary CRPF men posted in a nearby camp and Special Operation Group (SOG) of Police opened fire on the protesters killing seven and injuring at least 15 more.

TAMPERED DNA SAMPLES
On 5 April 2000, the then Chief Minister Farooq Abdullah ordered exhumation of bodies from Pathribal killings, which began the next day. DNA samples were collected from the five bodies as well as 15 relatives of the missing young men, and were submitted to forensic laboratories in Kolkata and Hyderabad.
However, in March 2002 it was discovered that the DNA samples allegedly taken from the bodies of the Pathribal victims (all of whom were men) had been tampered with, when, according to a report, lab workers found that samples had in fact been collected from females.
Fresh samples were collected in April 2002, which, upon testing, conclusively proved that the victims were innocent local civilians, and not foreign militants as government had been claiming for the past two years.
Meanwhile, the government headed by Dr Farooq Abdullah ordered a judicial enquiry into Pathribal fake encounter case and Brakpora firing under Justice S R Pandian.
Later on, the Pathribal case was handed over to the CBI. In 2006, CBI found five Indian military officers guilty and charge-sheet was presented in a local court.
However, the army appealed in the Supreme Court maintaining that the state government has no jurisdiction to punish the army as the Armed Forces Special Powers Act (AFSPA) was in force in the state.

APEX COURT OBSERVATIONS
In January earlier this year, army told the Supreme Court that it will not take over the case of its officers involved in the fake encounter.
The army said the initiation of proceedings without permission is illegal. The Supreme Court criticized the army for its stand regarding the issue, saying that neither is it willing to take over the case nor is it handing it over to the magistrate.
“Nothing has been happening for the last ten years regarding the case. Victims have not been able to get justice,” the Supreme Court observed.
Central Bureau of Investigation (CBI) also criticized the army stating that it has been trying to bury the case.
On March 19, CBI told the Supreme Court that the Pathribal encounter was in fact “cold blooded murder” and that the guilty officers deserve to be meted out exemplary punishment.
WITH INPUTS FROM PTI

Lastupdate on : Tue, 1 May 2012 21:30:00 Makkah time
Lastupdate on : Tue, 1 May 2012 18:30:00 GMT
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